Supreme Court Hears Oral Argument in Jan. 6 Obstruction Case

On Tuesday, April 16, 2024, the U.S. Supreme Court heard oral argument in the case of Fischer v. United States (Case No. 23-5572).

Fischer was charged with several crimes, one of which was obstruction of justice under 18 U.S.C. § 1512(c). That subsection provides:

(c)Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both. 

On appeal to the U.S. Supreme Court, Fischer asked the Court to find that the D.C. Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. Specifically, Fischer argued that subsection (2)’s “catchall” was not meant to apply to any official proceeding (e.g., an election proceeding), but was meant to be an evidence tampering statute. 

Fischer’s counsel, Jeffrey T. Green, started off by discussing why the statute was enacted:

“Congress enacted 1512(c) in 2002 in the wake of the large-scale destruction of Enron's financial documents. The statute therefore prohibits the impairment of the integrity or availability of -- of information and evidence to be used in a proceeding. In 2002, Congress hedged a little bit and added Section (c)(2) to cover other forms of impairment, the known unknowns, so to speak. It was, after all, the dawn of the Information Age. Until the January 6th prosecutions, Section 1512(c)(2), the "otherwise" provision, had never been used to prosecute anything other than evidence tampering, and that was for good reason. This Court has said that "otherwise," when used in a criminal statute, means to do similar conduct in a different way. . . The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxley-based, Enron-driven evidence-tampering statute is not one of them.”

The first question came from Justice Thomas, who rarely asks questions at oral argument. But Justice Sotomayor quickly picked up the questioning with the following hypothetical:

“There is a sign on the theater, you will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance. If you start yelling, I think no one would question that you can be expected to be kicked out under this policy, even though yelling has nothing to do with photograph or recording. The object that the verb is looking at, the verbs are looking at is the obstruction. It's not the manner in which you obstruct; it's the fact that you've obstructed.”

Arguing for the United States was Solicitor General Elizabeth Prelogar. Gen. Prelogar argued,

“The case as it comes to this Court presents a straightforward question of statutory interpretation: Did Petitioner obstruct, influence, or impede the joint session of Congress? The answer is equally straightforward. Yes, he obstructed that official proceeding. The terms of the statute unambiguously encompass his conduct. Petitioner doesn't really argue that his actions fall outside the plain meaning of what it is to obstruct. Instead, he asks this Court to impose an atextual limit on the actus reus. . . Section 1512(c)(2) by its terms is not limited to evidence impairment. Instead, it's a classic catchall. (c)(1) covers specified acts that obstruct an official proceeding, and (c)(2) covers all other acts that obstruct an official proceeding in a different manner. The Court should say so and allow this case to proceed to trial.”

Again, the first question to the U.S. came from Justice Thomas:

You can read the full transcript here. Interestingly, the two examples the U.S. gave in response to Justice Thomas’s question involved witness tampering, not the alleged obstruction of an election proceeding.

The Supreme Court’s decision on this case could have a massive impact on the rest of the January 6 prosecutions—as the Wall Street Journal reports, more than 350 January 6 cases charge obstruction of justice. I’ll be sure to update this post with the court’s ruling and reasoning once the opinion is issued. Stay tuned!